Langham: Mediation Success and Adding Capacity

Wednesday, November 22, 2017
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Mediation in workers' compensation is an area in which Florida was the pioneer.

Judge David Langham

In the 1990s, Florida tested and mandated mediation in workers' compensation claims. Mediation has been very effective in managing case volumes, and providing relief to the employees and employers served by workers' compensation.

Ironically, there have been other states that joined the trend lately. To some, those late-adopters have appeared (or been portrayed) to be pioneers or innovators as they accepted and copied the paradigm that has been the norm here for almost 25 years, and proclaimed the success of their "innovation."

The Florida Office of Judges of Compensation Claims was initially staffed with one mediator in each Division. Thus, with 31 judges, there were 31 mediators. In 2012, the Legislature eliminated one judge position and three mediator positions in the OJCC. This has significantly challenged the OJCC's efforts in delivering services.

However, the OJCC recently advertised a new mediator position. This was not added by the Legislature, but created by reclassifying another OJCC position, shifting resources to a different priority.

This new mediator position will be assigned to both Ft. Lauderdale and West Palm Beach, each of which are three judge offices that have operated for five years with only two mediators each. That handicap has resulted in both significant workload and has required telephonic mediation assistance in those districts, primarily in West Palm Beach.

This new mediator may spend time in each district or may be primarily based in one of the two and perform telephonic mediation in the other. In the end, the OJCC intends to be flexible in the details depending upon the mediator interested in the position.

The 2016-17 OJCC Annual Report has been published and distributed. Since 2010, the OJCC has also published a mediation and settlement report, providing further detail into Florida's alternative dispute resolution process. This post is part of a series highlighting various portions of those reports.

In 2016-17, 16,079 mediations were held by state mediators at an average cost of $169.39. Many private mediators charge hourly rates well in excess of these figures, commonly $250 per hour or more. Some private mediators also charge minimums (such as a two-hour minimum) for all mediations convened.

Therefore, services comparable to those delivered by the OJCC mediators, from private mediators, would likely cost an average of $500 more.

The OJCC is compelled to mediate cases within 130 days of petition filing. Since 2008-09, 100% of state mediators averaged less than 130 days. This measure is in stark contrast to the compliance demonstrated before that year. The credit for that compliance is due in large part to the efforts of the first OJCC deputy chief judge, Scott Stephens, and his institution of a computer-driven process that automatically set petitions for mediation.

Though the statute thus seems to afford 130 days for a mediation, the window available is actually only 60 days or fewer. The state mediation cannot be noticed until 40 days after the petition is filed. And the parties have to have advance notice to accommodate such calendar commitments.

It has become practice to strive to provide parties with 30 days’ notice of mediation. Thus, that combined 70 days of delay and notice must be deducted from the 130, leaving the 60 -ay window in most instances.

That there is a virtually unavoidable delay of 70 days legislatively built in to the process is interesting. But this is more interesting still when we note that the overall statewide average from petition filing to first mediation was 88 days in 2016-17. That essentially means that the "discretionary time" (excluding the 70 days built in) was essentially 18 days! That evidences a significant commitment and performance across the cadre of professionals who serve as State of Florida mediators.

For reasons highlighted in the Annual Report, there are constraints on the ability of state mediators to either double book or to place arbitrary time limits on mediation. Neither of those has ever been a practice in actuality, but there have been perceptions of both in the past. Those misperceptions were generally related to mediators trying to keep their calendars full despite the tendency of parties to cancel state mediations, often with little or no notice.

A great benefit to our efficiency would be effected if parties did discovery earlier, spoke with each other more and did not cancel mediations at the last minute.

The purpose of mediation is consistent in any dispute; workers' compensation is merely a subset, or type of, dispute. The purpose is resolution of differences in a participant-driven environment of discussion and compromise. It is in the best interest of every employee and employer that there is such opportunity for discussion regarding claims and defenses. Such participant-driven processes empower the very individuals for whom workers’ compensation was created.

The maximum number of mediation appointments that can be offered by the OJCC to Florida’s employers and employees is likely currently around 109,004. However, a more practical volume is likely around 70,532.

That is notably very close to the current filing volume. Recognizing that many mediations cover multiple petitions, the congruity between that maximum volume and the current filing rates is notable.

Of course, this post led with the advertisement of a new mediator position. The addition of a mediator will positively impact this availability in 2017-18. That one addition, accomplished without legislative intervention or additional agency funding, increases the total likely capacity from 70,532 to 73,051. This addition will help ease mediator calendar congestion for Florida's employees and employers.

However, with the apparent trend toward increased petition volumes, this addition is unlikely to be sufficient as a long-term solution. The long-term solution is legislative restoration of the (now) two remaining mediator positions (and replacing the staff position that has been used to "create" the recent 29th).

The reinstatement of those two remaining positions would increase the likely capacity to 78,089 and provide significant relief to congested calendars, a benefit to the very Floridians this system was built to service.

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